Industrial Com'n of Colo. v. Lockard, 12891.

• Decision Date: 21 September 1931
• Docket Number: 12891.
• Citation: 89 Colo. 428,3 P.2d 416
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. LOCKARD.
• Court: Colorado Supreme Court

3 P.2d 416

89 Colo. 428

INDUSTRIAL COMMISSION OF COLORADO et al. v. LOCKARD.

No. 12891.

Supreme Court of Colorado, En Banc.

September 21, 1931

Error to District Court, City and County of Denver; Neil F. Graham Judge.

Proceeding by Richard O. Lockard, claimant, against the Victor American Fuel Company, employer, for compensation. To review a judgment of the district court reversing a decision of the Industrial Commission denying compensation, and remanding the cause for a further hearing on the claim, the Industrial Commission and the employer bring error.

Modified and, as modified, affirmed.

Clarence L. Ireland, Atty. Gen., and Arthur L Olson, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Yeaman Gove & Huffman, of Denver, for plaintiff in error Victor American Fuel Co.

W. Penn Collins and J. H. Richard, both of Denver, for defendant in error.

BUTLER J.

The Industrial Commission denied Richard O. Lockard compensation for an injury sustained while in the employ of the Victor American Fuel Company. The district court adjudged as follows: 'That this said matter and claim be referred back to the said Commission for hearing upon said claim of plaintiff, the Commission therein to make detailed finding of facts as to the matter of said claim being barred or not, the jurisdiction of the Commission as to said claim, and if the findings of the Commission thereunder warrant, that then said Commission fix and provide for and hold and have hearing upon the merits of said claim of plaintiff, and thereupon to act and award as the facts may be established Before them in and by said hearing.' The commission and the company seek a reversal of that judgment.

Lockard was injured on November 29, 1926. Nine days thereafter the company reported the accident to the commission, stating among other things, that Lockard was injured underground in the company's 'Wadge' mine while performing services arising out of and in the course of his employment, and that the company employed the physician who attended him. On December 31, 1926, the company wrote the commission, stating that it did not feel that it was 'fully' liable for compensation in the case, and requesting the commission to allow it 'to suspend compensation payment until such time as a hearing can be held and the amount of the compensation which claimant is entitled to can be determined.' No order was entered in compliance with the request. On May 10, 1929, Lockard filed a claim for compensation and a request for a hearing thereon to determine the amount of compensation to which he was entitled. Instead of hearing the matter, or even setting it for a hearing, the referee sent Lockard's claim to the company, and asked it to indicate within ten days whether it was willing to waive the statute of limitations. Upon receiving word that the company would not waive its rights under that statute, the referee, on May 21, 1929, without any hearing, denied the claim on the ground that the claim was not filed within six months after the injury. He notified Lockard's attorney of his action, and declared that 'No hearing will, therefore, be held in the matter.' In the latter part of April, 1930, Lockard's attorney attempted to have the commission grant a hearing. On June 6, 1930, the commission denied the application, holding that the claim was barred by the statute of limitations, and therefore that the commission was without jurisdiction to act. The commission, however, ordered as follows: 'And this Commission hereby retains jurisdiction of this claim until the same is finally and fully closed.' On February 20, 1931, Lockard, through his present attorneys, filed a petition, setting out various alleged errors and other matters, and requesting the reopening of the matter by the commission and an opportunity to be heard. Thereupon the company wrote to the commission asking that the petition be denied. On March 5 the commission made an award denying the petition, stating: 'In the above entitled cause, the Commission of its own motion having again reviewed the entire file, including the further application for hearing filed herein, and being now fully advised in the premises, finds: That the award of this Commission of June 6, 1930, is correct and should be affirmed as the final award of this Commission. It is therefore ordered that the award of this Commission, dated June 6, 1930, be, and the same hereby is, affirmed as the final award of this Commission.' A petition for review was filed by Lockard on March 9, and on March 28 the commission made an award. It held that, as no petition for review from the award of June 6, 1930, was filed within ten days, the...